New Ireland Act Needed

The rights of the 381,000 Irish-born citizens living and working freely in Britain will be at risk after Brexit and those in the North will have no legal protection from deportation, a direct contravention of the Good Friday agreement, according to a report by migration barrister Simon Cox.

He says the legal structure protecting Irish people in Britain is a “patchwork that may fall apart under post- Brexit political and practical pressures” and calls for new legislation to copper-fasten existing rights. Mr Cox, of Doughty Street Chambers who is also employed as the Migration lawyer for the Open Society Justice Initiative, wrote the legal analysis of the rights of Irish citizens in the UK.

Barrister Simon Cox

He concludes that the British government here failed to identify a single law where the Ireland Act 1949 operates to confer rights on Irish citizens.

This is despite the best efforts of politicians like Lord (David) Alton, whose Irish-speaking mother came to Liverpool from the Galway Gaeltacht. Such rights as Irish citizens do have in this country, he says, because they are EU citizens and NOT because they are Irish citizens.

He argues that this puts them at risk, post-Brexit, of restrictions on welfare, right to work, enter and stay.

Deportation

Furthermore, he says, there would be no bar on deportation.

“The British Government has consistently promised that Brexit will not weaken the situation of Irish citizens in the UK, or the movement of Irish citizens to and from the UK.

“Yet it has not made public how it will deliver this promise. A close look at current British laws shows a patchwork that may fall apart under post-Brexit political and practical pressures.

“The Government should quickly commit to a simple, clear and comprehensive law to guarantee the rights of residence and equal treatment for all Irish citizens. This will reassure Irish people in the UK and be a welcome and important element of the UK’s post-Brexit migration policy.”

The report “Brexit and Irish citizens in the UK: how to safeguard the rights of Irish citizens in an uncertain future” is published by the Traveller Movement.

It speculates on what would happen to the rights of Irish citizens under UK law if the UK ended the special rights of EU citizens, without making specific new legal provision for Irish citizens. It says the immigration status of Irish citizens arriving from outside the Common Travel Area would be unclear and there here would be no explicit legal right for these people to enter, to stay, to work, and to rent private accommodation, nor any explicit legal bar on removal or deportation.

Clarity

The lack of clarity on the status of Irish citizens could make the British citizenship of their children unclear, he adds. There would be no explicit bar on exclusion of Irish citizens from Northern Ireland, regardless of their ties to Northern Ireland.

Lord David Alton

Irish citizens would be excluded from cash benefits and excluded from non-cash social welfare, unless this is ultimately found to violate their human rights, he says. He continues to say that Irish citizens may also be excluded from NHS treatment.

“It is also clear from the paper that UK law allows for deportation and exclusion of Irish citizens who are not also British citizens.

“This calls into question the Government’s rhetoric that Irish citizens and British citizens enjoy reciprocal rights, when in fact only the Irish Government has renounced the power to deport British citizens,” he says.

The paper outlines a series of recommendations to guarantee the rights of Irish citizens in post-Brexit UK and to do so with urgency. The simplest, and therefore most effective, means of guaranteeing the rights of Irish citizens after Brexit would be a general law providing that Irish citizens shall be treated as if they were British citizens for all purposes, he writes.

This would give effect to the original purpose of the Ireland Act 1949. He also calls on the British Government to renounce the power to deport Irish citizens just as the Irish Government has done for British citizens. He also calls for the removal of the power to deprive people in Northern Ireland who hold dual British-Irish citizenship of their British citizenship as can be done under the British Nationality Act 1981.

Lord Alton of Liverpool has already written to Brexit Minister Lord Callanan outlining his concerns about the report’s findings and called for the rights of Irish citizens to be secured with urgency.

He said in his letter: “The paper clearly demonstrates that the rights of Irish citizens – future generations and those already living here – are at risk and need to be secured with urgency”.

He also cast doubt on just how reciprocal the Ireland Act 1949 actually is as reciprocal as often touted: “To date, I have not been reassured by statements regarding the Ireland Act 1949. I have not seen an explanation how the 1949 Act operates to confer rights to Irish citizens in the UK nor have I seen a sufficient explanation as to how the Common Travel Area provides citizens with the rights to work or receive healthcare. Most concerning is the lack of clarity around the powers to deport Irish citizens; a power the Irish Government has renounced for British citizens.”

Absolute

In the letter, Lord Alton added: “In these most uncertain of times, I am afraid Irish citizens require and indeed deserve more than warm words. We need clear and absolute legal guarantees to Irish citizens, because when laws are complex or unclear they are open to misinterpretation and this can lead to severe consequences for individuals and families.”

“The paper spells out the problems and the gaps in law and importantly it also provides the solutions. I hope your Department considers its findings carefully.”

Bernard Ryan, Professor of Migration Law at the University of Leicester whose expertise on this specific subject has been featured in the Irish World before, repeated his calls for specific legislation: “The Government’s stated intention to maintain a special status for Irish citizens after Brexit is welcome.

“That intention ought however to be reflected in legislation, and guaranteed by an international agreement with Ireland. At present, Irish citizens are covered by British immigration law, unless they last entered the United Kingdom from elsewhere in the common travel area. That leads to uncertainty as to their legal position in many situations, and gives no guarantee that immigration policy will not change in the future.”